“Economics, personal liberty, and private property rights issues are as much of the heart of the conservative movement as anything else.”

No, they are as much as part of philosophical conservatism as anything else. That does not equate, however, with movement conservatism. Nixon didn’t convert the South with disaffected rich people. Karl Rove didn’t direct the 2004 GOTV efforts at natural law libertarians.

It’d be a lot more convincing if the examples came from the heart of the conservative movement, such as issues involving racial or sexual politics.

Economics, personal liberty, and private property rights issues are as much of the heart of the conservative movement as anything else. Unless you restrict it to just religious or social conservatives.

“How about McCain - Feingold, where the first words of the amendment in question is “Congress shall make no law” (not a lot of wiggle room there) becomes Congress can only make a law if we find a compelling interest? Though I don’t agree with them, lots of conservatives think getting the money out of politics is a good thing but they don’t like the way this was done.

How about Kelo, where “public use” magically changed to “public benefit” at the wave of a pen? I am not sure that this example strictly addresses your question, but I think that plenty of conservative fat cats will approve of their new beach front condo, but they might feel a little uneasy about having to kick grandma out of her house that she has been living in the last 40 years and demolishing it.”

Larry, those are very unconvincing examples. Sure, “lots” of conservatives support campaign finance reform and eminent domain, but not as many as liberals. Even if you contest this last claim, it’d still be impossible to label either as “conservative issues” rather than at the very least bipartisan ones, and it’s easy to point to wide swathes of the Right wing that are opposed to both. “Conservative fat cats” and reflexive pro-wealth and pro-corporatists against both CFR and takings, with libertarians added on to the opposition of the latter.

It’d be a lot more convincing if the examples came from the heart of the conservative movement, such as issues involving racial or sexual politics.

What are examples of cases in which conservatives approved of the outcome politically, but which conservatives nonetheless argued were “judicial activism” and thus wrongly decided?

How about McCain - Feingold, where the first words of the amendment in question is “Congress shall make no law” (not a lot of wiggle room there) becomes Congress can only make a law if we find a compelling interest? Though I don’t agree with them, lots of conservatives think getting the money out of politics is a good thing but they don’t like the way this was done.

How about Kelo, where “public use” magically changed to “public benefit” at the wave of a pen? I am not sure that this example strictly addresses your question, but I think that plenty of conservative fat cats will approve of their new beach front condo, but they might feel a little uneasy about having to kick grandma out of her house that she has been living in the last 40 years and demolishing it.

Snicker. You just recapitulated the Catholic rebuttal of the Protestant “sola scriptura” concept.

I’ve always thought of you as a secret Catholic apologist, Amp.

So are you saying that it’s not “judicial activism” so long as the decision makes a connection to the text of the Constitution (federal or state)? Or are you saying that it can still be “judicial activism” even when the decision includes a argument basing the decision on a Constitutional principle, so long as in your opinion that argument is wrong?

It’s not activist if there’s a genuine textual connection. It’s not whether I agree with the argument, it’s whether the derivation of the argument from the constitutional text is bona fide or smoke and mirrors. One easy way to test whether the derivation is bona fide is to attempt to apply the “new” principle in other places. If the response to that attempt is “well, gee, I guess that’s true, we DO think that such-and-such principle is true, let’s look at this more closely…”, that’s a good sign of a bona fide constitutional principle. When the reaction is “oh, but we didn’t intend for it to apply THERE…”, then it was likely special pleading aimed at obfuscating the issue. Try and tell the IRS it’s none of their business how much money you earned last year, and cite Roe’s privacy penumbra; good luck!

So if you want to find out if (say) the Goodridge ruling is activist, try to apply its logic in a Massachusetts case on an analogizable issue, and see what the Court says then.

What are examples of cases in which conservatives approved of the outcome politically, but which conservatives nonetheless argued were “judicial activism” and thus wrongly decided?

Well, just let me pull out my encyclopedic knowledge of conservative reactions to court cases over the past fifty years…oops, I left that DVD at home.

I can think one up pretty easy, though. Say the Court ruled that there was not only a natural-law right to self-defense, but that the social contract required affirmative self-defense - and used that logic to uphold a state law that requires citizens to carry weapons and be trained in their use. I would LOVE that decision, emotionally, personally, and politically - but it would be gross activism. The Court would be inventing a principle (affirmative self-defense) that is cool and interesting, but which has no support in the text.

I would define an activist decision to be one that interpretes the Constitution to mean something that it was NOT understood to mean when it was adopted. (Allowing for changing technology; I don’t think “freedom of the press” only applies to printing presses, and not to Xerox machines—but not for changing mores.)

By the way, Sam, can you show me where the Constitution says that judicial decisions must be based on original understandings, as you describe above?

I imagine that Ron thinks they should have considerable power/access to remedies. He just thinks that this law wasn’t actually in conflict with the state Constitution (Ron, if I’ve misinterpreted you, hit me.)

So in your opinion, Ron is using “activist” as a term meaning “a decision Ron thinks was wrongly decided.” That is, of course, how most people use the term (except that they think of themselves, not Ron, of course); but usually no one’s willing to admit that.

By the way, Ron’s argument didn’t contain a single reference to the Massachusetts Constitution, but did contain complaints about the remedy used. So I’m not sure where you’re getting your interpretation of Ron’s words from, but it’s definitely not based on a straightforward interpretation of the text. So apparently, you’re not an originalist. :-P

To me, judicial activism is finding Constitutional principles in places where no principle is elucidated, or ignoring the black-letter text of law in favor of a philosophy or legal theory that, however cool or brilliant, has no textual support in the founding document.

So are you saying that it’s not “judicial activism” so long as the decision makes a connection to the text of the Constitution (federal or state)? Or are you saying that it can still be “judicial activism” even when the decision includes a argument basing the decision on a Constitutional principle, so long as in your opinion that argument is wrong?

Judicial activism can be employed in the service of any ideology, left or right. It’s not about the outcome of the case being one that the person crying “activism” doesn’t like; the core element of judicial activism is the elevation of the personal principle over the objective text.

What are examples of cases in which conservatives approved of the outcome politically, but which conservatives nonetheless argued were “judicial activism” and thus wrongly decided?

As Ilya Somin pointed out, that means the word “activist” isn’t adding any value to the debate, since it’s substituting for a more precise and better-understood term. Why not just say “not originalist,” and then we’ll understand what you mean?

…Originalists might argue that judges are “activist” when they strike down laws that are not forbidden by the original meaning of the Constitution. In that case, however, the real intellectual work is being done not by the concept of “activism” but by whatever interpretive theory is used to determine whether a given law violates the Constitution or not. For the originalist, the key analytical concept is original meaning or intent; “activism” becomes just another label to attach to decisions that aren’t justified on originalist grounds. I don’t object if people want to use the word “activist” in this way. But I also don’t see how it adds anything to the argument.

By the way, I can think of several very well-publicized Supreme Court decisions in which the conservative majority of the Court clearly went against original intent. See, for instance, Scalia’s use of the 14th amendment to oppose affirmative action, even though the congress that framed the 14th amendment also supported affirmative-action-like policies and did not understand the 14th to have overturned those policies. Mysteriously, no Conservatives criticized those decisions as being activist. I wonder why?

I imagine that Ron thinks they should have considerable power/access to remedies. He just thinks that this law wasn’t actually in conflict with the state Constitution (Ron, if I’ve misinterpreted you, hit me.)

To me, judicial activism is finding Constitutional principles in places where no principle is elucidated, or ignoring the black-letter text of law in favor of a philosophy or legal theory that, however cool or brilliant, has no textual support in the founding document. Judicial activism can be employed in the service of any ideology, left or right. It’s not about the outcome of the case being one that the person crying “activism” doesn’t like; the core element of judicial activism is the elevation of the personal principle over the objective text.

There is a story about the old Supreme Court that illustrates this principle very well. Justice Oliver Holmes was leaving after a visit with Justice Learned Hand. As Holmes’ carriage began to pull away, Hand (to get a rise out of Holmes) called out “go and do justice!”

Holmes had the carriage come back around so that he could reply to Hand, “that, sir, is no part of my duties. My duty is to apply the law.”

I would define an activist decision to be one that interpretes the Constitution to mean something that it was NOT understood to mean when it was adopted. (Allowing for changing technology; I don’t think “freedom of the press” only applies to printing presses, and not to Xerox machines—but not for changing mores.)

In Goodridge, the court reviewed a law, and found the law to be in conflict with the Massachusetts state constitution. So they overturned that part of the law — the exclusion of same-sex couples from marriage — that was unconstitutional. “We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”

The judicial imposition of same-sex “marriage” in Massachusetts is a prime example; the Massachusetts Supreme Court actually told the legislature to pass a law to create it.

No, they didn’t. The Court ruled that, to be consistent with the state Constitution, legal marriage could no longer exclude same-sex couples, and gave the legislature 180 days to respond. The legislature responded by attempting to amend the Massachusetts Constitution, not by passing a law instituting same-sex marriage.

It appears that you think it’s an “activist” decision if a court decides that a law is in conflict with the constitution and so orders the law changed. If that’s what you think, then I have to ask: What remedy do you think the courts should have when they find that a law is in conflict with the Constitution? If the court can’t compel any changes when a law is unconstitutional, then what happens to checks and balances?

If this was a case of saying (for example) that “marriage is denied to interracial couples, that’s unconstitutional”, that’s fine. Black people got married. White people got married. To say that thus black and white people should be able to marry each other makes sense. But marriage was and is and always has been based on the concept of a bond between a man and a woman, and it’s been up to each couple to define the basis of that bond otherwise. The Massachusetts Supreme Court redefined marriage so that the emotional and material basis for the bond was the point and that the genders of the couples was variable. That’s absurd, in my view, and bypassed the right and indeed the obligation of the legislature to make the determination that homosexual relationships deserve the same state sanction as heterosexual ones.

The court has an obligation to see that marriage was applied to everyone equally; instead, they invented something new and called it “marriage” and then told the legislature to adopt that into law. It’s the twisting and redefinition of marriage by the courts as opposed to the legislature that I see as objectionable.

That seems like kind of a lame reason to me. As you say later in your comment, it’s not the judges fault the suit wasn’t brought earlier.

Didn’t exactly the same thing happen in Hawaii in 1996? Only in that case, the legislature enacted changes to keep SSM illegal. I think. It’s been 11 years & I may not be remembering correctly.

Tangentially, this article relating to Hawaii’s rulings is hilarious:
http://starbulletin.com/96/12/03/news/index.html

[shrug] but hey: it’s not the JUDGES’ fault taht nobody brought the case. Don’t blame them.

I put “liberal” in quotes because conservatives don’t seem to pay much attention to what the court’s reasoning was or whether it actually created new law; they see a result that they perceive as something that would make Liberal Q. McLefty happy, and call it judicial activism.

Me too. That’s why I don’t do it.

I’m also curious why you would set the word liberal in quotes and not the word conservative?

Y’know, I am really, REALLY tired of conservatives pretending that a court is engaging in “judicial activism” any time it reaches a ‘liberal’ result, whereas a court that reaches a result conservatives like cannot possibly be activist, no matter on what it bases its decision.

What the Legislature in Massachusetts could have done, of course, is to amend the state’s Constitution to eliminate the unconstitutionality of its marriage law. They still could. Guess The People need to get off their ass and get amending if they really want to express their will in that direction.

And, by the way, when you start talking about some vague trend happening “more and more these days”, you seriously need to run Old Fogey Remover on your fact-checking device.